Mercedes Fuel Tank Class Action - Amended Complaint - FINAL
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Transcript of Mercedes Fuel Tank Class Action - Amended Complaint - FINAL
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORIGA
ATLANTA DIVISION
RONAN MCCABE, )
RANDA HERRING, )
JON DUSTIN STONE, ) CIVIL ACTION NO.
ADAM DEUEL, )
MINH VO, ) 1:12-cv-02494-TCB
OMAR MATTADEEN, )
CINDY CUNNINGHAM, and )
BLESSILDA MEDIANA, )
Individually, and on behalf of )
all others similarly situated, )
)
Plaintiffs, )
)
v. )
)
DAIMLER AG and )
MERCEDES-BENZ USA, LLC, ) JURY TRIAL DEMANDED
)
Defendants. )
__________________________________________________________________
FIRST AMENDED CLASS ACTION COMPLAINT
Pursuant to this Court’s August 3, 2012 Order, and Rule 15 of the Federal
Rules of Civil Procedure, Plaintiffs, RONAN MCCABE, RANDA HERRING,
JON DUSTIN STONE, ADAM DEUEL, MINH VO, OMAR MATTADEEN,
CINDY CUNNINGHAM, and BLESSILDA MEDIANA, individually, and on
behalf of other similarly situated persons, file this First Amended Class Action
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Complaint against DAIMLER AG and MERCEDES-BENZ USA, LLC
(“MBUSA”), and in support thereof state:
A. INTRODUCTION
1. Plaintiffs bring this class action to remedy Defendants’ unlawful
actions in connection with the design, manufacture, marketing, distribution, and
sale of 2003-2009 model year W211 E-Class Mercedes-Benz vehicles. These
vehicles were designed, manufactured, marketed, distributed, and sold by
Defendants.
2. The W211 E-Class generation of Mercedes-Benz brand vehicles were
produced by Daimler AG from 2003 to 2009. In 2006, Mercedes had a mid-
generation “refresh” of the W211 line; however, the entire generation from 2003-
2009 share a common design and manufacturing process with regard to the fuel
tank, fuel sending unit, evaporation tubes, and associated fuel system components
on these vehicles.
3. Due to undisclosed defects in the fuel tank, fuel sending unit, and
evaporation tubes, the vehicles in question experience problems that result in
gasoline vapor leaks into the vehicle cabin, liquid gasoline leaks outside of the
vehicle, and liquid gasoline absorption into the interior seats.
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4. To date, there have been well over one hundred (100) complaints to
the National Highway Traffic Safety Administration (NHTSA) regarding the smell
of gasoline in the cabin and/or liquid gasoline leaks outside of this type of
Mercedes.
5. As discussed below, Plaintiffs assert claims, on behalf of themselves
and the defined Classes, for violations of the Magnuson-Moss Warranty Act, 15
U.S.C. §2301, et seq., breach of express warranty, breach of the implied covenant
of good faith and fair dealing, implied warranty of merchantability, violations of
the Texas Deceptive Practices Act, violations of the Virginia Consumer Protection
Act, violations of the Florida Deceptive and Unfair Trade Practices Act, violations
of the Illinois Uniform Deceptive Trade Practices Act, violations of the Illinois
Consumer Fraud And Deceptive Business Practices Act, violations of the
California Business & Professions Code, unjust enrichment, and/or fraudulent
concealment.
B. PARTIES
6. Plaintiff Ronan McCabe is, and at all times relevant to this action was,
a citizen of the United States and domiciled in Tucker, Gwinnett County, Georgia,
which is located within the geographic boundaries of this District and this Division
of this District. He brings this action in an individual capacity, and in the capacity
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of the class representative of others similarly situated, and by bringing this lawsuit
in this venue, avails himself of the jurisdiction of this Court.
7. Plaintiff Randa Herring is, and at all times relevant to this action was,
a citizen of the United States domiciled in Newnan, Georgia, which is located
within the geographic boundaries of this District. She brings this action in an
individual capacity, and in the capacity of the class representative of others
similarly situated, and by bringing this lawsuit in this venue, avails herself of the
jurisdiction of this Court.
8. Plaintiff Jon Dustin Stone is, and at all times relevant to this action
was, a citizen of the United States and domiciled in Dallas, Texas. He brings this
action in an individual capacity, and in the capacity of the class representative of
others similarly situated, and by bringing this lawsuit in this venue, avails himself
of the jurisdiction of this Court.
9. Plaintiff Adam Deuel is, and at all times relevant to this action was, a
citizen of the United States and domiciled in Houston, Texas. He brings this action
in an individual capacity, and in the capacity of the class representative of others
similarly situated, and by bringing this lawsuit in this venue, avails himself of the
jurisdiction of this Court.
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10. Plaintiff Minh Vo is, and at all times relevant to this action was, a
citizen of the United States and domiciled in Sterling, Virginia. He brings this
action in an individual capacity, and in the capacity of the class representative of
others similarly situated, and by bringing this lawsuit in this venue, avails himself
of the jurisdiction of this Court.
11. Plaintiff Omar Mattadeen is, and at all times relevant to this action was,
a citizen of the United States domiciled in Pembroke Pines, Florida. He brings this
action in an individual capacity, and in the capacity of the class representative of
others similarly situated, and by bringing this lawsuit in this venue, avails himself
of the jurisdiction of this Court.
12. Plaintiff Cindy Cunningham is, and at all times relevant to this action
was, a citizen of the United States domiciled in Streeter, Illinois. She brings this
action in an individual capacity, and in the capacity of the class representative of
others similarly situated, and by bringing this lawsuit in this venue, avails herself
of the jurisdiction of this Court.
13. Plaintiff Blessilda Mediana is, and at all times relevant to this action
was, a citizen of the United States domiciled in Arcadia, California. She brings
this action in an individual capacity, and in the capacity of the class representative
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of others similarly situated, and by bringing this lawsuit in this venue, avails
herself of the jurisdiction of this Court.
14. Defendant DAIMLER AG, is an alien corporation duly registered in
the Federal Republic of Germany with its main corporate offices located in the
Mercedesstr. 137, 70327 Stuttgart, Germany, with additional facilities at 70546,
Stuttgart, Germany. DAIMLER, AG, is the parent corporation of Mercedes-Benz
USA, LLC. Defendant DAIMLER AG may be served by delivering a copy of the
Summons and Complaint, pursuant to Federal Rules of Civil Procedure 4(h)(2) and
4(f)(2)(c)(ii), Article 10(a) of the Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters (referred to as “The
Hague Service Convention”), and other applicable laws, to DAIMLER AG,
Mercedesstr. 137, 70327, Stuttgart, Germany.
15. Defendant Mercedes-Benz USA, LLC, is a duly certified corporation
of the State of New Jersey with its principal corporate offices located at One
Mercedes Drive, Montvale, Bergen County, New Jersey. Defendant Mercedes-
Benz USA, LLC may be served by delivering a copy of the Summons and
Complaint to its registered agent for service of process, CT Corporation System,
1201 Peachtree Street, N.E., Atlanta, Fulton County, Georgia 30361, which is
located within this Division and this District.
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C. JURISDICTION AND VENUE
16. This court has jurisdiction over this action under the Class Action
Fairness Act of 2005, 28 U.S.C. § 1332(d). The aggregate claims of the individual
class members exceed the sum value of $5,000,000 exclusive of interest and costs,
there are believed to be in excess of 100 class members, and this is a class in which
more than two-thirds of the proposed Plaintiff classes on the one hand, and
Defendants on the other hand, are citizens of different states.
17. Venue and personal jurisdiction is proper in this district because both
Defendants transact business and derive substantial revenues from business activity
in this District, and further because Plaintiffs McCabe and Herring are residents of
this District. See LR 3.1(B)(2), NDGa. Defendants’ contacts with the district are
sufficient to subject Defendants to personal jurisdiction in this Court. Further,
aliens, such as Daimler AG, may be sued in any district. 28 U.S.C. § 1391(d).
D. FACTUAL BACKGROUND
18. The vehicles at issue were designed, manufactured, marketed, and
sold or leased by Defendants. The Mercedes-Benz vehicles in question were
accompanied by MBUSA’s New Vehicle Warranty, which expressly promised to
“warrant to the original and each subsequent owner of a new Mercedes-Benz
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vehicle that any authorized Mercedes-Benz Center will make any repairs or
replacements necessary, to correct defects in material or workmanship arising
during the warranty period.” See “Exhibit A” to Orig. Compl. (Mercedes-Benz
Service and Warranty Information 2009, at p. 11 (emphasis added).1 Other
warranties for other year models contain similar provisions.
19. Mercedes-Benz USA, LLC, which is a subsidiary of Daimler AG,
operates as the United States sales division responsible for importing the vehicles
to the United States, selling the vehicles to authorized dealers, and servicing the
vehicle warranties.
20. Daimler designed and manufactured over 300,000 W211 E-Class
vehicles for model years 2003-2009, which were shipped to the United States and
sold by MBUSA. The models include the E320, E350, E500, E550, E55 AMG,
and E63 AMG.
21. Due to defects in the design and/or manufacturing, the vehicles at
issue are prone to emit gasoline fumes into the cabin and leak liquid gasoline from
the gas tank outside of the vehicle. The defect is contained in or around the
1 Plaintiffs attached as “Exhibit A” to Orig. Compl. only the warranty booklet for
the 2009 model year vehicles; however, the express warranties that accompanied
all defective vehicles are substantially similar.
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evaporation tubes located in the gasoline tank, which causes either the gasoline
fumes to emanate from the tank into the cabin, or the liquid gasoline to leak out of
the tank, or both. The gasoline leaks from the evaporation tubes and pools on top
of the fuel sending units. Vehicle owners have also experienced gasoline pooling
underneath their vehicles. Others have had interior rear seats ruined by absorbing
leaking gasoline. Owners have also experienced strong odors of gasoline in the
closed confines of the vehicle cabins. All of these conditions result from a defect
in the fuel tank, fuel sending unit, evaporation tubes, and associated fuel system
components that are common to all W211 E-Class vehicles.
22. Owners of the affected vehicles have a reasonable expectation that
normal and routine use of their vehicles will not result in exposure to gasoline
vapors or the potential of such exposure from defective parts or components during
the vehicle life. Exposure to gasoline vapor is dangerous for cabin occupants,
which can lead to sickness and other health related issues. Many states have
published information concerning health and safety risks of uncontained gasoline.
For example, The Illinois Department of Public Heath published the dangers of
breathing gasoline on its website:2
2 http://www.idph.state.il.us/envhealth/factsheets/gasoline.htm
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Many adverse health effects of gasoline are due to individual
chemicals in gasoline, mainly BTEX, that are present in small amounts.
Breathing small amounts of gasoline vapors can lead to nose and throat
irritation, headaches, dizziness, nausea, vomiting, confusion and breathing
difficulties. Symptoms from swallowing small amounts of gasoline include
mouth, throat and stomach irritation, nausea, vomiting, dizziness and
headaches. Some effects of skin contact with gasoline include rashes,
redness and swelling. Being exposed to large amounts of gasoline can lead
to coma or death.
23. The Texas Department of Insurance published, “Gasoline Safety A 5-
Minute Safety Training Aid,” which also discusses not only the health effects of
exposure, but also the explosive damagers.
The number one hazard of gasoline is fire or explosion. Liquid
gasoline does not burn, but gasoline vapors do. Since the vapors are heavier
than air, they move along close to the ground and can collect in low areas.
Any ignition source (cigarette, match, hot exhaust pipe or any spark) can
ignite gasoline vapors. When gasoline vapors ignite, one gallon of gasoline
can explode with the same force as 14 sticks of dynamite.
Gasoline can also cause adverse health effects. Contact with the skin
causes the skin to dry and crack. Prolonged breathing of gasoline vapors can
cause dizziness, nausea, or vomiting…. Gasoline contains a toxic chemical
called Benzene. Benzene is a known carcinogen, therefore you should avoid
breathing gasoline vapors or taking gasoline into your mouth.
See “Exhibit B” to Orig. Compl. (Gasoline Safety).3
3 “An explosion is possible if the vapors are lit by a spark or flame . . ..” Wisconsin
Department of Health Services,
http://www.dhs.wisconsin.gov/eh/chemfs/fs/gasoline.htm
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24. ChevronTexaco published a Material Safety Data Sheet also warning
of the safety hazards of gasoline.
Inhalation: The vapor or fumes from this material may cause
respiratory irritation. Symptoms of respiratory irritation may include
coughing and difficulty breathing. Breathing this material at concentrations
above the recommended exposure limits may cause central nervous system
effects. Central nervous system effects may include headache, dizziness,
nausea, vomiting, weakness, loss of coordination, blurred vision,
drowsiness, confusion, or disorientation. At extreme exposures, central
nervous system effects may include respiratory depression, tremors or
convulsions, loss of consciousness, coma or death.
Cancer: Prolonged or repeated exposure to this material may cause
cancer. Gasoline has been classified as a Group 2B carcinogen (possibly
carcinogenic to humans) by the International Agency for Research on
Cancer (IARC). Contains benzene, which has been classified as a
carcinogen by the National Toxicology Program (NTP) and a Group 1
carcinogen (carcinogenic to humans) by the International Agency for
Research on Cancer (IARC). Contains ethyl benzene which has been
classified as a Group 2B carcinogen (possibly carcinogenic to humans) by
the International Agency for Research on Cancer (IARC). Contains
naphthalene, which has been classified as a Group 2B carcinogen (possibly
carcinogenic to humans) by the International Agency for Research on
Cancer (IARC).
Whole gasoline exhaust has been classified as a Group 2B carcinogen
(possibly carcinogenic to humans) by the International Agency for Research
on Cancer (IARC).
See “Exhibit C” to Orig. Compl. (Material Safety Data Sheet).
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25. Without taking into consideration the foreseeability of cigarette
smoking in or around the affected vehicles4 and the possibility of ignition sources
if same are located in proximity to a leaking fuel container, Daimler designed and
manufactured the affected vehicles with ashtrays and cigarette lighters in both the
front seating and rear seating areas of the cabin. The cigarette lighter and ashtray
in the rear of the vehicles are located in close proximity to where the gasoline leaks
out of the tank. Daimler reasonably expects vehicle occupants may light and
smoke cigarettes in the affected vehicles. Thus, Daimler has a duty to occupants to
keep them safe from harmful gasoline vapors that may cause sickness or explosion.
26. On January 23, 2012, NHTSA opened an investigation into the
gasoline leaks on 2003-2006 Mercedes-Benz E55 vehicles. See “Exhibit D” to
Orig. Compl. (NHTSA Campaign Summary PE12001).
27. NHTSA states that complaints allege leakage of raw fuel pooling
and/or spraying on vehicle components.
28. The report also cites recall campaign #2008-020001, which was
initiated by MBUSA to remedy an issue of leaking gasoline. See “Exhibit E” to
4 The Centers for Disease Control and Prevention (CDC) estimates 45.3 million
people in the United States smoke cigarettes.
http://www.cdc.gov/tobacco/data_statistics/fact_sheets/adult_data/cig_smoking/ind
ex.htm
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Orig. Compl. (Voluntary Emissions Recall Campaign #2008-020001 Notice
Letter).
29. The recall campaign only applied to certain 2003-2006 E-Class
vehicles. It did not remedy the issue concerning gas leakage, with further leakage
resulting from E-Class vehicles having the recall campaign performed. Many of
the vehicles receiving the “recall” are still experiencing unsafe fuel containment
issues, simply because Defendants either misdiagnosed the source of the gasoline
and vapor leaks, or chose to conceal the actual source of the leaks, which would
have been a greater cost to Defendants to remedy through recall. With gasoline
tanks still leaking, Defendants refuse to acknowledge owner complaints, because
the vehicles already had “recalls” performed. Moreover, in regard to the other
affected 2003-2009 E-Class vehicles with substantially similar designs, neither
Daimler nor MBUSA have issued any pertinent recall to address this problem.
30. Daimler has received ample notice of the problems affecting all vehicles
with these substantially similar designs, as there are well over one hundred
complaints regarding unsafe fuel containment issues across all E-Class vehicles.
These Complaints can be found using the search function at the NHTSA website
http://www.odi.nhtsa.dot.gov/complaints.
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31. The following are excerpts of some complaints to NHTSA concerning
the safety issues associated with the defect complained of herein:
Date of Failure – December 5, 2011. See “Exhibit F” to Orig. Compl. (Complaint
12/5/11)
Both fuel sending units leaking from the top of the fuel tank. Fuel
was puddling under the rear seats and was dripping on the ground. My 6
year old son got in the car this morning and complained that it smelled like
gas. This is a major safety issue as well as an environmental issue. What
would happen if the leaking fuel came in contact with a hot exhaust pipe? A
recall was issued for the same problem in 2008. However, the recall did not
resolve the problem. It only delays it until you are out of warranty and are
forced to pay out of pocket for a costly repair.
Date of Failure – December 1, 2009. See “Exhibit G” to Orig. Compl. (Complaint
12/1/09)
The contact owns a 2005 Mercedes Benz E55. The contact stated that
there was a strong fuel odor inside of the vehicle while parked. The vehicle
was taken to an authorized dealer on several occasions where the fuel pump
was replaced but the failure persisted. The vehicle was towed back to the
dealer and the contact was informed that the fuel sending unit was leaking.
The manufacturer was made aware of the failure. The failure mileage was
unavailable.
Date of Failure – June 4, 2011. See “Exhibit H” to Orig. Compl. (Complaint
6/4/11)
Fuel system leaks at sending unit/pump after fueling up vehicle. Fuel
sits on top of sending unit/pump until fuel tank reaches approx ¾ of a tank.
Vehicle had campaign (recall) for fuel sender conducted in 2008 according
to dealer and MBUSA. Have contacted both about the issue and neither say
they’ve heard of a problem. Dealer said they would look into it but would
charge a diagnostic fee. Have pictures of fuel on of sending unit/pump also.
After fueling vehicle the vehicle cannot be stored in my garage due to the
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vapor fumes filling my garage also my house. After fueling a strong smell
of garage can be smelt (sic) outside of the vehicle and in the summer months
smelt inside the vehicle at times.
Date of Failure – August 8, 2011. See “Exhibit I” to Orig. Compl. (Complaint
8/8/11)
Fuel smell in cabin of vehicle and fuel soaked charcoal canister.
Mercedes Benz is not able to correct problem. Pressured (sic) checked tank
and replaced charcoal soaked canister, problem still not resolved.
Date of Failure – August 1, 2011. See “Exhibit J” to Orig. Compl. (Complaint
8/1/11)
2005 Mercedes E55. Vehicle has a strong gas smell. Found gaskets
at fuel senders leaking again. There was a recall to repair this issue in 2008
seems like it didn’t fit the issue.
Date of Failure – July 14, 2011. See “Exhibit K” to Orig. Compl. (Complaint
7/14/11)
Fuel tank leak. Garage is filled with gas smell. After reading on line,
it seems that thousands of other MB E-Class (Model Year 03-06) are having
the same exact issue. This is a clear safety hazard and in the hot and humid
Virginia weather, the car is a mobile bomb waiting to go off. Please forward
this to the engineer that is working/looking at the existing complaints for the
same issue.
Date of Failure – April 7, 2011. See “Exhibit L” to Orig. Compl. (Complaint
4/7/11)
Fuel sending units cracked on driver’s side causing gas to pool on top
of senders….literally six inches from where my three year old sits in the car.
Fuel is pooling on the top of the sender units and then draining down the gas
tank and outside of the vehicle. In addition, the entire cabin of vehicle
inside and out smells of fuel.
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Date of Failure – January 1, 2012. See “Exhibit M” to Orig. Compl. (Complaint
1/1/12)
The interior cabin of my 2006 Mercedes Benz E500 has a strong odor
of gasoline. Especially after refueling. Recently, I get headaches and dizzy
when driving. So I have to roll down the windows to get rid of the smell. I
have addressed this problem to multiple Mercedes Benz service centers and
they said that there is no danger but if I wanted the smell to go away, it
would cost me appx $2000. I feel that this is a danger while driving because
the fumes can cause the driver to pass out, or a spark in the car possibly from
a short circuit or cigarette lighter could ignite in the car and cause an
accident. After doing research regarding this matter, it seems it is the exact
complaint of: Reference NHTSA Action Number: PE12001. I feel that this
engineering/manufacturing defect should be addressed by Mercedes Benz
and repaired due to its potential hazards it may cause on the highway.
Date of Failure – January 27, 2010. See “Exhibit N” to Orig. Compl. (Complaint
1/27/10)
The contact owns a 2006 Mercedes Benz E350. The contact stated
that the fuel pump which is located under the drivers seat was leaking. The
seats and the carpet were saturated with fuel due to the leak. The dealer
repaired the fuel pump that was leaking. The manufacturer was not notified
after the vehicle was taken to the service center. The failure mileage was
94,000.
Date of Failure – November 11, 2010. See “Exhibit O” to Orig. Compl.
(Complaint 11/11/10)
I am a single 1 owner of a 2003 Mercedes Benz E55 AMG and it is
leaking fuel into the back seat above the tank. The recall that was issued in
2008 were performed and it is now leaking again, has wrecked the insulation
above the tank. MB refused to help.
Date of Failure – October 23, 2010. See “Exhibit P” to Orig. Compl. (Complaint
10/23/10)
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I came out to my car the morning after filling up the tank fully and
smelled a strong odor of gasoline inside the car. I drove it to the dealer and
it turns out the fuel filter/fuel sending units had cracked and were leaking
fuel. There is a sending unit on either side of the fuel tank under the rear
passenger seats, and the fuel was leaking out the tops of these sending units
into the cabin of the vehicle. Because I caught it early, the gasoline had only
pooled on the top of the fuel sending unit and not spilled into the seats and
footwells. The dealer diagnosed the issue as cracked sending units and said
both needed to be replaced. I did some research online and found that there
had been a voluntary recall on my car in 2008 by Mercedes-Benz for this
exact issue. The recall had been performed but clearly had not fixed the
issue, as these parts failed again less than 2 years later….
Date of Failure – December 26, 2010. See “Exhibit Q” to Orig. Compl.
(Complaint 12/26/10)
My 2003 Mercedes E55 AMG sedan has a strong smell of fuel
coming from the vehicle. I contacted my local dealer and they said the
problem was fixed back in 2008. Apparently the problem has not been
solved and I fear an explosion from my garage filing up with fumes and 2
sources of fire. My furnace and my water heater.
Date of Failure – February 7, 2011. See “Exhibit R” to Orig. Compl. (Complaint
2/7/11)
I smell strong gas odor at rear driver side, when I get the full tank of
gas. I went to a shop and lift the car that I can see the gas leak around the
tank. I just want to say this kind of leaking very dangerous, because under
the tank is exhaust pipe. That would be fired when too much gas leaking
and no MIL light come on. Also no any recall for the problem when I call to
ask the MB dealer.
Date of Failure – January 10, 2011. See “Exhibit S” to Orig. Compl. (Complaint
1/10/11)
Both fuel sending units leaking from the top of the fuel tank. Fuel
was puddling under the rear seats and was dripping on to the ground. Both
sending units were replaced at our expense. Other owners of the same
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vehicle are having the same issues and Mercedes is not cooperating with
starting a recall process. This issue is a safety concern as well as an
environmental issue.
Date of Failure – August 23, 2010. See “Exhibit T” to Orig. Compl. (Complaint
8/23/10)
Whenever I fill the gas tank strong smell of gas in the cabin of the car.
I removed the rear seat to find the insulation barrier soaked in gas and inside
the maintenance panel where the fuel filter assy. on the LH side of the car,
just beneath the LH passenger seat cushion, had a puddle of gas present.
Date of Failure – June 1, 2010. See “Exhibit U” to Orig. Compl. (Complaint
6/1/2010)
2005 Mercedes Benz E55 fuel sending unit was spraying gas into the
compartment which is underneath the driver side back passenger seat. There
was a recall on the car already and it was replaced and failed in just 18
months. Brought the car to Mercedes of Freehold and they said “Been
changed under recall” and they can’t do anything for me now that the new
part has failed. Ended up buying the part out of pocket and replacing it
because it was not under warranty any more. Gas being sprayed under the
back passenger seat is not safe at all! Not to mention my cabin was filled
with gas fumes.
Date of Failure – August 14, 2010. See Exhibit V” to Orig. Compl. (Complaint
8/14/10)
The contact owns a 2003 Mercedes E55. The contact was driving 35
MPH when he noticed an overpowering gasoline fuel odor from the vehicle
interior. The dealer made repairs to the fuel tank seals. Later while
refueling the vehicle, the contact noticed a large puddle of gasoline under the
vehicle. He further inspected the failure and found a large puddle of
gasoline fuel atop the fuel tank. The contact stated the vehicle was
previously repaired under an unknown manufacturer’s recall for the fuel
assembly in 2008. The vehicle was not further repaired. The failure mileage
was 55,000 and the current mileage was 64,000.
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32. NHTSA mandates that manufacturers issue recalls for safety related
defects. If a manufacturer identifies a safety defect, the manufacturer notifies
NHTSA, as well as vehicle or equipment owners, dealers, and distributors. A
safety defect is one which poses an unreasonable risk to safety and is common to a
group of vehicles of the same manufacture or design. The manufacturer must then
fix the problem at no charge to the consumer. This requirement has no limitation
on vehicle mileage and applies to all vehicles within 25 years of manufacture. See
49 USC §30101 et seq.
33. Despite being aware of the defect as early as 2008, and perhaps
sooner, Defendants failed to notify NHTSA and issue a recall to correct the defect.
Leaking fuel tanks pose an unreasonable risk of safety to vehicle owners for risk of
fire/explosion and health related problems. Defendants failed to repair or replace
defective fuel tanks under vehicle warranties and/or pursuant to 49 USC §30101 et
seq. Instead, Defendants chose to ignore and conceal the defect, instructing
Mercedes-Benz technicians only to replace fuel sending units under warranty after
repeated owner complaints.
34. Defendants also instructed Mercedes-Benz technicians not to issue
replacement parts to the vehicles included in recall campaign #2008-020001 after
replacement parts also failed. These replacement parts issued under recall
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campaign #2008-020001 did not correct the defect, because the defect was either
misidentified by Defendants or concealed to defer costs to owners for complete
replacement of gasoline tanks that will once again exhibit the same gasoline leaks.
35. These vehicles still suffer from leaking fuel tanks and the affected E-
Class owners covered under campaign #2008-020001 are not being given proper
replacement parts after the failure of recalled parts under campaign #2008-020001.
36. Defendants were apparently hoping these customers would be
assuaged or that the fuel tanks and fuel sending units would be out of warranty by
the time customers came back for the necessary repair and/or replacement. By
engaging in this behavior, Defendants sought to profit by not incurring the cost of
replacing parts under warranty and by further realizing revenue on part sales for
replacements. Defendants still have not redesigned and manufactured the fuel
tanks free of all defects. Owners who have been forced by Defendants to purchase
and replace defective gasoline tanks out-of-pocket only received new defective
gasoline tanks. Defendants have not remanufactured these defective gasoline tanks
to be free from the safety defect at issue.
37. With full knowledge that the gasoline tanks in E-Class models were
defectively designed and/or manufactured, Defendants failed to reengineer the
parts at issue and continued to sell vehicles with safety defects through the 2009
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model year. Defendants never disclosed the defects or the potential risks of those
defects to consumers, nor did they revise warranties for an extension on the
defective parts already included in earlier models. Rather, Defendants did nothing
to remedy safety defects concerning proper storage of explosive and flammable
gasoline.
38. Due to the common defects contained in the fuel tank, fuel sending
unit, evaporation tubes, and associated fuel system components, which are
substantially similar across the E-Class vehicle lines and model years identified
herein, all fuel tanks have to be replaced. Some owners have paid thousands of
dollars to replace the gas tank, fuel sending units, and evaporation tubes, which is
passed on to owners following warranty expiration, because Defendants did not
issue a recall for the defective parts, even though they knew the defects to exist in
E-Class vehicles. Failure to adequately contain gasoline and gasoline fumes render
the vehicles unsafe to drive and unsafe to store in garages due to the potential for
explosions and sickness.
39. After obtaining the vehicles in question, each of the named Plaintiffs
experienced problems with raw fuel and gasoline fumes leaking from their E-Class
vehicle gas tanks. These vehicles exhibit common safety defects across all lines
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and model years of E-Class vehicles identified herein, and created by Defendants,
for which Defendants have the responsibility to correct.
E. NAMED PLAINTIFFS’ EXPERIENCES
I. MCCABE
40. Plaintiff Ronan McCabe is, and at all times relevant to this action was,
a resident of Tucker, Georgia. On or about January 24, 2012, McCabe purchased a
2006 Mercedes-Benz E55 AMG.
41. McCabe expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
McCabe did not receive a vehicle that conformed to the standard he expected to
receive.
42. At the time of the purchase, Defendants failed to disclose to McCabe
or to the public the fact that there were underlying safety defects with the gasoline
tanks contained in Mercedes-Benz E55 AMG vehicles, like the one purchased by
McCabe. This defect was material in that he never would have purchased the
vehicle had he known this defect existed. The defect also substantially affected the
value of McCabe’s vehicle. As a result of the defect, McCabe received a vehicle
that has a diminished value for what he believed he had paid for and purchased.
23
The vehicle additionally has a diminished value due to a negative market effect
simply because it contains a safety defect.
43. McCabe used his vehicle as intended and foreseen by the Defendants.
44. On January 25, 2012, McCabe noticed a strong gasoline odor
emanating from the right side rear of his E55 AMG vehicle. McCabe contacted
MBUSA concerning the issue, and was informed his E55 AMG, which was or
should have been a recalled vehicle under campaign #2008-020001, was not
eligible for repairs under the recall campaign. McCabe was instructed to take his
vehicle to a Mercedes-Benz service center to be diagnosed.
45. On January 26, 2012, McCabe presented his E55 AMG vehicle at
Atlanta Classic Cars, an authorized Mercedes-Benz service center, for diagnosis.
Service technicians diagnosed the fuel leak as coming from the fuel-sending unit
on the left side of the gasoline tank. Service technicians replaced McCabe’s fuel
sending unit at a cost of $302.87 to McCabe. Defendants were unjustly enriched
and received an economic benefit through Plaintiff McCabe’s purchase of this
replacement part from Defendants, through their authorized dealer.
46. On February 3, 2012, McCabe noticed the gasoline odor and liquid
fuel leak was once again present in his E55 AMG vehicle. On or about February 6,
2012, McCabe again presented his E55 AMG vehicle at Atlantic Classic Cars, and
24
explained he was still experiencing a strong odor of gasoline in the vehicle cabin
after the gasoline tank was filled. Mercedes-Benz service technicians diagnosed
the issue as the gasoline tank leaking from the feed tube. Service technicians
replaced the gasoline tank, fuel sending units, fuel pump, and rings and seals at an
additional cost of $1,632.25 to McCabe. Defendants were unjustly enriched and
received an economic benefit through Plaintiff McCabe’s purchase of these
replacement parts from Defendants, through their authorized dealer. Despite the
gasoline tank and fuel-sending unit being replaced, defects still exist in McCabe’s
vehicle, which can cause strong fuel odor to become present in the vehicle cabin if
the gas tank is completely filled.
II. HERRING
47. Plaintiff Herring is, and at all times relevant to this action was, a
resident of Newnan, Georgia. On or about April 9, 2009, Herring purchased a used
2006 Mercedes-Benz E500 from an authorized Mercedes-Benz dealership,
Mercedes-Benz of South Atlanta. The vehicle was covered by a factory warranty
at the time of purchase.
48. Herring expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
25
Herring did not receive a vehicle that conformed to the standard she expected to
receive.
49. At the time of the purchase, Defendants failed to disclose to Herring
or to the public the fact that there were underlying safety defects with the gasoline
tanks contained in Mercedes-Benz E500 vehicles, like the one purchased by
Herring. This defect was material in that she never would have purchased the
vehicle had she known this defect existed. The defect also substantially affected
the value of Herring’s vehicle. As a result of the defect, Herring received a vehicle
that has a diminished value from what she believed she had paid for and purchased.
50. Throughout her ownership of the vehicle, she used the E500 vehicle
as it was intended and foreseen by the Defendants.
51. On or about July 29, 2012, Herring noticed a strong gasoline odor
inside her E500 vehicle.
52. On or about July 30, 2012, Herring presented her E500 vehicle to
Mercedes-Benz of South Atlanta, an authorized Mercedes-Benz service center, for
diagnosis. Service technicians immediately identified the strong fuel smell and
diagnosed the fuel leak as coming from the gas tank or its related components.
53. Mercedes-Benz of South Atlanta quoted Herring $2,896.64 to replace
both fuel level senders, seals, and covers, and to replace the fuel tank in her
26
vehicle. Alternatively, Mercedes-Benz of South Atlanta offered to allow Herring
to trade-in her defective vehicle towards the purchase of a different vehicle, but
with a reduction in price paid for her trade-in to reflect the problem with the fuel
smell in her vehicle.
54. Herring elected to trade-in the defective E500 vehicle. During the
trade-in process, Mercedes-Benz of South Atlanta deducted $3,937 from the trade-
in value of her vehicle, as their valuation of the diminished value of the vehicle due
to the fuel smell and fuel-related defects.
55. Defendants were unjustly enriched and received an economic benefit
through Herring’s lost value in her trade-in vehicle to their authorized dealer.
III. STONE
56. Plaintiff Jon Dustin Stone is, and at all times relevant to this action
was, a resident of Dallas, Texas. On or about July 7, 2011, Stone purchased a 2007
Mercedes-Benz E63 AMG.
57. Stone expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
Stone did not receive a vehicle that conformed to the standard he expected to
receive.
27
58. At the time of the purchase, Defendants failed to disclose to Stone, or
the public, the fact that there were underlying safety defects with the gasoline tanks
contained in Mercedes-Benz E63 AMG vehicles, like the one purchased by Stone.
This defect was material in that he never would have purchased the vehicle had he
known this defect existed. The defect also substantially affected the value of
Stone’s vehicle. As a result of the defect, Stone received a vehicle that has a
diminished value for what he believed he had paid for and purchased. The vehicle
additionally has a diminished value due to a negative market effect simply because
it contains a safety defect.
59. Stone used his vehicle as intended and foreseen by the Defendants.
60. On or about January 18, 2012, Stone presented his E63 AMG at
Mercedes-Benz of Plano complaining of a fuel odor and liquid fuel leak.
Mercedes-Benz service technicians replaced the left side fuel-sending unit and
installed a new seal on the right side fuel-sending unit.
61. On or about January 20, 2012, Stone again presented his E63 AMG to
Mercedes-Benz of Plano complaining of bad fuel odor in the cabin still emanating
from the gasoline tank. Service technicians found a “material defect” in the new
left side fuel-sending unit that was installed two days earlier. They once again
replaced the fuel-sending unit on the left side.
28
62. On or about February 3, 2012, Stone presented his E63 AMG at
Mercedes-Benz of Plano after seeing a liquid fuel leak pool underneath his vehicle
while parked in his garage. Mercedes-Benz service technicians then replaced the
entire gasoline tank. Despite the gasoline tank and fuel sending unit being
replaced, a defect still exists in the parts, which can cause strong fuel odor to
become present in the vehicle cabin if the gas tank is completely filled.
IV. DEUEL
63. Plaintiff Adam Deuel is, and at all times relevant to this action was, a
resident of Houston, Texas. On or about June 11, 2011, Deuel purchased a 2004
Mercedes-Benz E500 from Expo Motorcars in Houston, Texas.
64. Deuel expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
Deuel did not receive a vehicle that conformed to the standard he expected to
receive.
65. At the time of the purchase, Defendants failed to disclose to Deuel or
to the public the fact that there were underlying safety defects with the gasoline
tanks contained in Mercedes-Benz E500 vehicles, like the one purchased by Deuel.
This defect was material in that he never would have purchased the vehicle had he
known this defect existed. The defect also substantially affected the value of
29
Deuel’s vehicle. As a result of the defect, Deuel received a vehicle that has a
diminished value for what he believed he had paid for and purchased. The vehicle
additionally has a diminished value due to a negative market effect simply because
it contains a safety defect.
66. Deuel used his vehicle as intended and foreseen by the Defendants.
67. On or about August 10, 2012, Deuel noticed a strong gasoline odor
inside his E500 vehicle. On August 13, 2012, Deuel presented his vehicle at
Mercedes-Benz of Houston North, notifying the Mercedes-Benz technicians of a
fuel leak in his vehicle.
68. Service technicians diagnosed the fuel leak as coming from the fuel-
sending unit on the left side of the gasoline tank, telling Deuel “Anytime you’re
leaking fuel, that’s a safety issue.” Service technicians replaced Deuel’s fuel
sending unit at a cost of $1,042.12 to Deuel. Defendants were unjustly enriched
and received an economic benefit through Deuel’s purchase of this replacement
parts from Defendants, through their authorized dealer.
69. The fuel leak in Deuel’s vehicle was so potent, the fuel escaped the
tank through the top and soaked into the rear seat upholstery. It created a large
brown stain in the leather, which could not be cleaned. Deuel was forced to
replace the rear seat on August 16, 2012 at a cost of $289.00. Despite the fuel-
30
sending unit being replaced, defects still exist in the parts, which can cause strong
fuel odor to become present in the vehicle cabin if the gas tank is completely filled.
V. VO
70. Plaintiff Minh Vo is, and at all times relevant to this action was, a
resident of Sterling, Virginia. On or about December 15, 2008, Vo purchased a
certified pre-owned 2006 Mercedes-Benz E500 from an authorized Mercedes-Benz
dealership, Mercedes-Benz of Arlington, Virginia. The vehicle was covered by a
factory certified pre-owned (“CPO”) warranty at the time of purchase.
71. On or about December 23, 2010, Vo also purchased a pre-owned 2005
Mercedes-Benz E55 AMG from Infiniti of Tyson’s Corner in Vienna, Virginia.
The vehicle was not covered by a factory warranty at the time of purchase.
72. When Vo purchased each of these vehicles, he expected to receive
vehicles that were designed and manufactured to conform to the standard
automotive quality for fuel containment. Vo did not receive vehicles that
conformed to the standard he expected to receive.
73. At the time of the purchase, Defendants failed to disclose to Vo or to
the public the fact that there were underlying safety defects with the gasoline tanks
contained in Mercedes-Benz E55 AMG and E500 vehicles, like the ones purchased
by Vo. This defect was material in that he never would have purchased the
31
vehicles had he known this defect existed. The defect also substantially affected
the value of Vo’s vehicles. As a result of the defect, Vo received vehicles that
have a diminished value for what he believed he had paid for and purchased. The
vehicles additionally have a diminished value due to a negative market effect
simply because they contain a safety defect.
74. Vo used his vehicles as intended and foreseen by the Defendants.
75. On or about March 14, 2011, Vo presented his E55 AMG at
Mercedes-Benz of Arlington complaining of gasoline odor both inside and outside
of the vehicle. Although his vehicle was part of the recall campaign #2008-020001,
Defendants refused to replace the defective parts under the recall, because the
recall was already performed prior to Vo’s ownership. Service technicians
replaced one fuel sending unit and two seal rings at a cost to Vo of $945.28.
Despite the fuel-sending unit being replaced, the defect still exists in the gasoline
tank causing strong fuel odor to become present in the vehicle cabin when the gas
tank is completely filled. Defendants were unjustly enriched and received an
economic benefit through Plaintiff Vo’s purchase of replacement parts from
Defendants, through its authorized dealer.
76. Vo is also experiencing the same gasoline odor in his E500, which has
not had any parts replaced yet. Vo cannot park his E-Class vehicles in his garage
32
for fear of fire or explosion. Vo is also concerned for the health of his child and is
forced to drive with the windows open for additional ventilation.
VI. MATTADEEN
77. Plaintiff Mattadeen is, and at all times relevant to this action was, a
resident of Pembroke Pines, Florida. On or about April 9, 2004, Mattadeen
purchased a 2004 E55 AMG new from an authorized Mercedes-Benz dealership.
The vehicle was sold with an original factory warranty at the time of purchase.
78. Mattadeen expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
Mattadeen did not receive a vehicle that conformed to the standard he expected to
receive.
79. At the time of the purchase, Defendants failed to disclose to
Mattadeen or to the public the fact that there were underlying safety defects with
the gasoline tanks contained in Mercedes-Benz E55 AMG vehicles, like the one
purchased by Mattadeen. This defect was material in that he never would have
purchased the vehicle had he known this defect existed. The defect also
substantially affected the value of Mattadeen’s vehicle. As a result of the defect,
Mattadeen received a vehicle that has a diminished value from what he believed he
had paid for and purchased.
33
80. Throughout his ownership of the vehicle, Mattadeen used it as
intended and foreseen by the Defendants.
81. On or about March 27, 2008, Mattadeen presented his E55 AMG
vehicle to Mercedes-Benz of South Beach, an authorized Mercedes-Benz service
center, for diagnosis and complained of a fuel smell in the vehicle. Service
technicians informed Mattadeen that his vehicle was part of the recall campaign
#2008-020001.
82. Pursuant to the recall campaign, Mercedes-Benz of South Beach
replaced the fuel filter on Mattadeen’s vehicle.
83. This repair, however, did not resolve the fuel smell in Mattadeen’s
E55 AMG, and Mattadeen returned to Mercedes-Benz of South Beach complaining
of a fuel smell in the cabin of his vehicle.
84. Mercedes-Benz of South Beach refused to perform additional repairs
under the recall campaign and quoted Mattadeen $2,221.48 to replace the fuel tank
of his vehicle—a solution that will not permanently resolve the fuel smell in
Mattadeen’s vehicle.
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VII. CUNNINGHAM
85. Plaintiff Cunningham is, and at all times relevant to this action was, a
resident of Streeter, Illinois. On or about July 12, 2003, Cunningham purchased a
2003 Mercedes-Benz E55 AMG new from an authorized Mercedes-Benz
dealership. The vehicle was sold with an original factory warranty at the time of
purchase.
86. Cunningham expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
Cunningham did not receive a vehicle that conformed to the standard for which she
expected to receive.
87. At the time of the purchase, Defendants failed to disclose to
Cunningham or to the public the fact that there were underlying safety defects with
the gasoline tanks contained in Mercedes-Benz E55 AMG vehicles, like the one
purchased by Cunningham. This defect was material in that she never would have
purchased the vehicle had she known this defect existed. The defect also
substantially affected the value of Cunningham’s vehicle. As a result of the defect,
Cunningham received a vehicle that has a diminished value from what she believed
she had paid for and purchased.
35
88. Throughout her ownership of the vehicle, Cunningham used it as
intended and foreseen by the Defendants.
89. On or about June 12, 2009, Cunningham had recall #2008-020001
performed on her vehicle at Mercedes-Benz of Naperville. Since the recall was
performed, Cunningham began to experience strong fuel odor inside the vehicle
after refueling. She has also seen fuel pooling on the ground underneath her fuel
tank on numerous occasions.
90. Cunningham notified Mercedes-Benz of Naperville’s service
department about the fuel leaks. She was then told by Mercedes-Benz of
Naperville that the recall was only to be performed once and the cost to fix the fuel
leaks would be passed to her at more than $2,500.00.
91. After being notified that MBUSA would not be replacing the
defective parts causing Cunningham’s vehicle to leak fuel, Cunningham’s son
removed the rear seat to find that liquid gasoline had been sitting on top of one of
the fuel sending units. The gasoline had also made its way into the seat cushion.
92. As a result of the fuel leaks, Cunningham cannot park her Mercedes-
Benz vehicle in the garage for fear of the safety of herself and her family. She also
cannot put more than three quarters of fuel in her tank. Additionally, Cunningham
36
feels that her vehicle is in an unsafe condition and that she will be unable to exit
the vehicle due to her physical disability if it catches fire.
VIII. MEDIANA
93. Plaintiff Mediana is, and at all times relevant to this action was, a
resident of Arcadia, California. On or about October of 2008, Mediana purchased
a 2005 Mercedes-Benz E55 AMG pre-owned from an authorized Mercedes-Benz
dealership. The vehicle was covered by a factory warranty at the time of purchase.
94. Mediana expected to receive a vehicle that was designed and
manufactured to conform to the standard automotive quality for fuel containment.
Mediana did not receive a vehicle that conformed to the standard she expected to
receive.
95. At the time of the purchase, Defendants failed to disclose to Mediana
or to the public the fact that there were underlying safety defects with the gasoline
tanks contained in Mercedes-Benz E55 AMG vehicles, like the one purchased by
Mediana. This defect was material in that she never would have purchased the
vehicle had she known this defect existed. The defect also substantially affected
the value of Mediana’s vehicle. As a result of the defect, Mediana received a
vehicle that has a diminished value from what she believed she had paid for and
purchased.
37
96. Throughout her ownership of the vehicle, Mediana used it as intended
and foreseen by the Defendants.
97. At some point during 2012, Mediana noticed a strong fuel odor inside
the vehicle after refueling.
98. Mediana presented her vehicle to an authorized Mercedes-Benz
dealership, notifying the Mercedes-Benz technicians of a fuel leak in her vehicle.
99. The authorized Mercedes-Benz dealership performed repairs on her
vehicle pursuant to the vehicle’s warranty plan.
100. This repair, however, did not resolve the fuel smell in Mediana’s E55
AMG, and Mediana returned to the authorized Mercedes-Benz dealership
complaining of a fuel smell in the cabin of her vehicle.
101. The dealership refused to perform additional repairs to the vehicle and
Mediana’s vehicle continues to have a fuel smell in it after filling the tank.
F. CLASS ACTION ALLEGATIONS
102. Plaintiffs McCabe and Herring bring this action as a class action
pursuant to Federal Rule of Civil Procedure 23, on behalf of themselves and the
following Class:
38
All current and former owners and lessees of 2003-2009
Mercedes-Benz E320, E350, E500, E550, E55 AMG, and E63 AMG
that reside in Georgia (“Georgia Class”).
Georgia Subclass:
All members of the Georgia Class who incurred out of pocket
expenses for parts and labor to replace gasoline tanks, fuel sending
units, rings, and any other parts located within or part of the gasoline
tank assembly.
Excluded from the Georgia Class are Defendants, as well as Defendants’
employees, affiliates, officers, and directors, including franchised dealers, any
individuals who experienced physical injuries as a result of the defects at issue in
this litigation and the Honorable Timothy C. Batten, Sr. Plaintiffs reserve the right
to amend the definition of the Class if discovery and/or further investigation reveal
that the Georgia Class should be expanded or otherwise modified.
103. Plaintiffs Stone and Deuel bring this action as a class action pursuant
to Federal Rule of Civil Procedure 23, on behalf of themselves and the following
Class:
39
All current and former owners and lessees of 2003-2009
Mercedes-Benz E320, E350, E500, E550, E55 AMG, and E63 AMG
that reside in Texas (“Texas Class”).
Texas Subclass:
All members of the Texas Class who incurred out of pocket
expenses for parts and labor to replace gasoline tanks, fuel sending
units, rings, and any other parts located within or part of the gasoline
tank assembly.
Excluded from the Texas Class are Defendants, as well as Defendants’ employees,
affiliates, officers, and directors, including franchised dealers, any individuals who
experienced physical injuries as a result of the defects at issue in this litigation and
the Honorable Timothy C. Batten, Sr. Plaintiffs reserve the right to amend the
definition of the Class if discovery and/or further investigation reveal that the
Texas Class should be expanded or otherwise modified.
104. Plaintiff Vo brings this action as a class action pursuant to Federal
Rule of Civil Procedure 23, on behalf of himself and the following Class:
All current and former owners and lessees of 2003-2009
Mercedes-Benz E320, E350, E500, E550, E55 AMG, and E63 AMG
that reside in Virginia (“Virginia Class”).
40
Virginia Subclass:
All members of the Virginia Class who incurred out of pocket
expenses for parts and labor to replace gasoline tanks, fuel sending
units, rings, and any other parts located within or part of the gasoline
tank assembly.
Excluded from the Virginia Class are Defendants, as well as Defendants’
employees, affiliates, officers, and directors, including franchised dealers, any
individuals who experienced physical injuries as a result of the defects at issue in
this litigation and the Honorable Timothy C. Batten, Sr. Plaintiff reserves the right
to amend the definition of the Class if discovery and/or further investigation reveal
that the Virginia Class should be expanded or otherwise modified.
105. Plaintiff Mattadeen brings this action as a class action pursuant to
Federal Rule of Civil Procedure 23, on behalf of himself and the following Class:
All current and former owners and lessees of 2003-2009
Mercedes-Benz E320, E350, E500, E550, E55 AMG, and E63 AMG
that reside in Florida (“Florida Class”).
Excluded from the Florida Class are Defendants, as well as Defendants’
employees, affiliates, officers, and directors, including franchised dealers, any
41
individuals who experienced physical injuries as a result of the defects at issue in
this litigation and The Honorable Timothy C. Batten, Sr. Plaintiff reserves the
right to amend the definition of the Class if discovery and/or further investigation
reveal that the Florida Class should be expanded or otherwise modified.
106. Plaintiff Cunningham brings this action as a class action pursuant to
Federal Rule of Civil Procedure 23, on behalf of herself and the following Class:
All current and former owners and lessees of 2003-2009
Mercedes-Benz E320, E350, E500, E550, E55 AMG, and E63 AMG
that reside in Illinois (“Illinois Class”).
Excluded from the Illinois Class are Defendants, as well as Defendants’
employees, affiliates, officers, and directors, including franchised dealers, any
individuals who experienced physical injuries as a result of the defects at issue in
this litigation and The Honorable Timothy C. Batten, Sr. Plaintiff reserves the
right to amend the definition of the Class if discovery and/or further investigation
reveal that the Illinois Class should be expanded or otherwise modified.
107. Plaintiff Mediana brings this action as a class action pursuant to
Federal Rule of Civil Procedure 23, on behalf of herself and the following Class:
42
All current and former owners and lessees of 2003-2009
Mercedes-Benz E320, E350, E500, E550, E55 AMG, and E63 AMG
that reside in California (“California Class”).
Excluded from the California Class are Defendants, as well as Defendants’
employees, affiliates, officers, and directors, including franchised dealers, any
individuals who experienced physical injuries as a result of the defects at issue in
this litigation and The Honorable Timothy C. Batten, Sr. Plaintiff reserves the
right to amend the definition of the Class if discovery and/or further investigation
reveal that the California Class should be expanded or otherwise modified.
108. The Texas Class, Georgia Class, Virginia Class, Florida Class, Illinois
Class, and California Class are hereinafter referred to collectively as “Classes.”
109. Numerosity / Luminosity / Impracticality of Joinder: The members of
the Classes are so numerous that joinder of all members would be impractical.
Plaintiffs reasonably estimate that there are thousands of Class members who
purchased the relevant vehicles. The members of the Classes are easily and readily
identifiable from information and records in Defendants’ possession, control, or
custody.
110. Commonality and Predominance: There is a well-defined community
of interest and common questions of law and fact that predominate over any
43
questions affecting the individual members of the Classes. These common legal
and factual questions, which exist without regard to the individual circumstances
of any Class member, include, but are not limited to, the following:
a. Whether the gasoline tanks, fuel sending units, and evaporator
tubes in the subject vehicles are defective;
b. Whether Defendants omitted, misrepresented, concealed, or
manipulated material facts from Plaintiffs and the Classes
regarding the defects, the actions taken to address the defects,
and the end result of said actions;
c. Whether Defendants engaged in fraudulent business practices
with respect to the sale of the Mercedes-Benz E-Class vehicles;
d. Whether Defendants had a duty to disclose the defects to the
Plaintiffs and Classes;
e. Whether Defendants had a duty to issue a recall for the
defective parts at issue;
f. Whether Defendants violated the Magnuson-Moss Act;
g. Whether Defendants breached express warranties pursuant to
Plaintiffs and the Classes;
44
h. Whether Defendants breached implied warranties pursuant to
Plaintiffs and the Classes;
i. Whether Defendants breached their duty of good faith and fair
dealing;
j. Whether Defendants violated the Texas Deceptive Trade
Practices Act;
k. Whether Defendants violated the Virginia Consumer Protection
Act;
l. Whether Defendants violated the Florida Deceptive And Unfair
Trade Practices Act;
m. Whether Defendants violated the Illinois Uniform Deceptive
Trade Practices Act;
n. Whether Defendants violated the Illinois Consumer Fraud And
Deceptive Business Practices Act;
o. Whether Defendants violated the California Unfair Business
Practices;
p. Whether Defendants have been unjustly enriched;
q. Whether Defendants engaged in fraud;
r. Whether Plaintiffs and the Classes are entitled to damages; and,
45
s. Whether Plaintiffs and the Classes are entitled to equitable
relief or other relief, and the nature of such relief.
111. Typicality: The Plaintiffs’ claims are typical of Classes in that
Plaintiffs and the Classes all have purchased vehicles that contain defective parts
that cause Plaintiffs to suffer from improper fuel containment in affected vehicles
and sustain damages as a direct proximate result of the same wrongful practices
that the Defendants engaged in. Plaintiffs’ claims arise from the same practices
and course of conduct that give rise to the members of the Classes’ claims.
Plaintiffs’ claims are based upon the same legal theories as the members of the
Classes’ claims. The only difference between the Plaintiffs’ and members of the
Classes’ claims would lie in the exact amount of damages sustained, which could
be determined readily and does not bar class certification.
112. Adequacy: Plaintiffs will fully and adequately protect the interests of
the members of the Classes and have retained class counsel who are experienced
and qualified in prosecuting class actions, including consumer class actions and
other forms of complex litigation. Neither the Plaintiffs nor their counsel have
interests which are contrary to, or conflicting with, those interests of the Classes.
113. Superiority: A class action is superior to all other available methods
for the fair and efficient adjudication of this controversy because, inter alia: it is
46
economically impracticable for members of the Classes to prosecute individual
actions; prosecution as a class action will eliminate the possibility of repetitious
and redundant litigation; and, a class action will enable claims to be handled in an
orderly, expeditious manner.
G. COUNT 1 – DEFENDANTS’ VIOLATION OF THE MAGNUSON-
MOSS ACT – EXPRESS WARRANTY
114. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
115. The Mercedes-Benz E-Class vehicles are “consumer products” as that
term is defined by 15 U.S.C. §2301(1).
116. Plaintiffs Vo, Herring, Mattadeen, Cunningham, Mediana, and other
members of the Virginia, Georgia, Florida, Illinois, and California Classes, are
“consumers” as that term is defined by 15 U.S.C. §2301(3).
117. Defendants are a “supplier” as that term is defined by 15 U.S.C.
§2301(4).
118. Defendants are a “warrantor” as that term is defined by 15 U.S.C.
§2301(5).
119. Defendants provided Plaintiffs Vo, Herring, Mattadeen, Cunningham,
Mediana, and other members of the Virginia, Georgia, Florida, Illinois, and
47
California Classes with “written warranties” as that term is defined by 15 U.S.C.
§2301(6).
120. Section 15 U.S.C. §2310(d)(1) provides that a consumer who is
damaged by the failure of a supplier, warrantor, or service contractor to comply
with any obligation under this title, or a written warranty, implied warranty, or
service contract, may bring suit for damages and other legal and equitable relief in
any court of competent jurisdiction in any state or in an appropriate District Court
of the United States.
121. Defendants breached their express warranties by selling vehicles that
had defective gasoline tanks, fuel sending units, and evaporation tubes at the time
of sale.
122. Defendants further breached the express warranties by either refusing
to replace the defective parts or replacing the defective parts with new defective
parts.
123. In its capacity as supplier, warrantor, and service provider, and by the
conduct described herein, any attempt by Defendants to limit their express
warranties in a manner that would exclude or limit coverage for the defective
gasoline tanks, fuel sending units, and evaporation tubes is unconscionable and any
such effort to disclaim or limit liability for said defects is void.
48
H. COUNT 2 – DEFENDANTS’ VIOLATION OF THE MAGNUSON-
MOSS ACT – IMPLIED WARRANTY
124. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
125. The Mercedes-Benz E-Class vehicles are “consumer products” as that
term is defined by 15 U.S.C. §2301(1).
126. Plaintiffs Vo, Herring, Mattadeen, Cunningham, Mediana, and other
members of the Virginia, Georgia, Florida, Illinois, and California Classes are
“consumers” as that term is defined by 15 U.S.C. §2301(3).
127. Defendants are a “supplier” as that term is defined by 15 U.S.C.
§2301(4).
128. Defendants are a “warrantor” as that term is defined by 15 U.S.C.
§2301(5).
129. Defendants provided Plaintiffs Vo, Herring, Mattadeen, Cunningham,
Mediana, and other members of the Virginia, Georgia, Florida, Illinois, and
California Classes with “written warranties” as that term is defined by 15 U.S.C.
§2301(6).
130. Defendants provided Plaintiffs Vo, Herring, Mattadeen, Cunningham,
Mediana, and other members of the Virginia, Georgia, Florida, Illinois, and
49
California Classes with “implied warranties” as that term is defined by 15 U.S.C.
§2301(7).
131. In their capacity as supplier, warrantor, and service provider, and by
the conduct described herein, any attempt by Defendants to limit their implied
warranties in a manner that would exclude or limit coverage for the defective
gasoline tanks, fuel sending units, and evaporation tubes is unconscionable and any
such effort to disclaim or limit liability for said defects is void.
132. Defendants have had a reasonable opportunity to cure the defects, and
any further obligation that may exist is extinguished by operation of law as a result
of, inter alia, Defendants’ conduct as described herein, including Defendants’
knowledge of the defects, denial of the defects, cover-up of the defects, and their
improper action, and inaction in the face of their knowledge of the defects.
133. In addition, Defendants received, on information and belief,
complaints and other notices from consumers advising them of the defects
associated with the relevant vehicles.
I. COUNT 3 – DEFENDANTS’ BREACH OF EXPRESS WARRANTY
134. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
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135. Plaintiffs Vo, Herring, Mattadeen, Cunningham, and Mediana all
purchased vehicles with accompanying warranties from Defendant MBUSA.
136. Defendants’ New Vehicle Warranty expressly warrants that:
DEFECTS: Mercedes-Benz USA, LLC (MBUSA) warrants to
the original and each subsequent owner of a new Mercedes-
Benz vehicle that any authorized Mercedes-Benz Center will
make any repairs or replacements necessary, to correct defects
in material or workmanship arising during the warranty period.5
137. The respective E-Class vehicles were defective in breach of the
warranty.
138. Defendants breached the warranty by failing to repair E-Class gas
tanks, fuel sending units, and evaporation tubes to a condition free of defects, as
opposed to replacing parts that still rendered the engines defective.
139. To the extent that Defendants’ express warranty purports to limit, in
any manner, coverage for defective design and/or manufacture of the gasoline
tanks, fuel sending units, and evaporation tubes, the warranty is both procedurally
and substantively unconscionable.
5 Although MBUSA services the warranties provided with new Mercedes-Benz
vehicles sold in the United States, the warranty is issued at the direction of Daimler
AG. Additionally, Daimler AG designs and manufactures vehicles and their parts
used in warranty replacements; therefore, it is essential to the decision for issuance
of recalls. Both MBUSA and Daimler AG are, upon information and belief,
concurrently responsible.
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140. As set forth herein, any such disclaimers were unconscionable
because Defendants knew or should have known that the gasoline tanks, fuel
sending units, and evaporation tubes were defective when they sold and/or leased
to Plaintiffs and members of the Classes their Mercedes-Benz vehicles.
141. As a direct and proximate cause of Defendants’ express warranty
breach, Plaintiffs Vo, Herring, Mattadeen, Cunningham, Mediana, and other
members of the Virginia, Georgia, Florida, Illinois, and California Classes have
been damaged.
J. COUNT 4 - DEFENDANTS’ BREACH OF IMPLIED WARRANTY
OF MERCHANTABILITY
142. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
143. Plaintiffs Vo, Herring, Mattadeen, Cunningham, and Mediana, all
purchased vehicles with accompanying warranties from Defendant MBUSA.
144. Defendants’ implied warranty of merchantability accompanied the
sale and/or lease of the Mercedes-Benz vehicles to Plaintiffs Vo, Herring,
Mattadeen, Cunningham, Mediana, and other members of the Virginia, Georgia,
Florida, Illinois, and California Classes. The defects allowing gasoline and
gasoline fumes to escape the gasoline tanks rendered the subject Mercedes-Benz
vehicles unmerchantable.
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145. The gasoline tanks, fuel sending units, and evaporation tubes contain
undisclosed defects that rendered the respective Mercedes-Benz vehicles defective
and unfit for their advertised, ordinary purpose for which they were purchased and
used.
146. As set forth herein, any effort by Defendants to disclaim or otherwise
limit their responsibility for the defective E-Class vehicle gasoline tanks and
evaporation tubes was unconscionable under all of the circumstances.
147. Through the conduct described herein, Defendants breached their
implied warranty of merchantability and are liable to Plaintiffs Vo, Herring,
Mattadeen, Cunningham, Mediana, and other members of the Virginia, Georgia,
Florida, Illinois, and California Classes
148. As a direct and proximate result of Defendants’ breach, Plaintiffs and
members of the Classes have sustained damages.
K. COUNT 5 – DEFENDANTS’ BREACH OF IMPLIED COVENANT
OF GOOD FAITH AND FAIR DEALING
149. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
150. In the course of purchasing and obtaining service for their respective
Mercedes-Benz vehicles, Plaintiffs Vo, Herring, Mattadeen, Cunningham,
Mediana, and other members of the Virginia, Georgia, Florida, Illinois, and
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California Classes entered into agreements with Defendants, and/or were otherwise
in contractual privity.
151. The agreements were subject to implied covenants of good faith and
fair dealing, requiring that Defendants conduct business with Plaintiffs Vo,
Herring, Mattadeen, Cunningham, Mediana, and other members of the Virginia,
Georgia, Florida, Illinois, and California Classes in good faith and deal fairly and
justly with them.
152. Defendants breached the implied covenants of good faith and fair
dealing by distributing to Plaintiffs Vo, Herring, Mattadeen, Cunningham,
Mediana, and other members of the Virginia, Georgia, Florida, Illinois, and
California Classes Mercedes-Benz vehicles that were equipped with defective
gasoline tanks, fuel sending units and evaporation tubes, and by intentionally
subjecting Plaintiffs Vo, Herring, Mattadeen, Cunningham, Mediana, and other
members of the Virginia, Georgia, Florida, Illinois, and California Classes to safety
defects that were known and/or contemplated at the time of purchase. Defendants
further breached the implied covenants of good faith and fair dealing by denying
the existence of known, documented, reported defects and problems, and in some
cases making efforts to avoid service, repair, and replacement obligations.
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L. COUNT 6 – VIOLATION OF THE TEXAS DECEPTIVE TRADE
PRACTICES ACT (“DTPA”)
153. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
154. Plaintiffs Stone, Deuel, and members of the Texas Class are
consumers who purchased or leased a 2003-2009 Mercedes-Benz E-Class Vehicle
under Tex. Bus. & Com. Code §17.45(4).
155. Defendants can be sued under the DTPA, because the DTPA allows a
plaintiff to bring a cause of action against any person who uses or employs false,
misleading, or deceptive acts or practices. See Tex. Bus. & Com. Code
§1750(a)(1). Corporations are defined to be included as persons. See Tex. Bus. &
Com. Code §1745(3).
156. Defendants used or employed false, misleading, or deceptive act or
practice that is specifically enumerated in subsection (b) of Section 17.46 and
relied on by a consumer to his detriment. See Tex. Bus. & Com. Code
§17.50(a)(1).
157. Defendants acted unconscionably in failing to provide the proper
course of action to remedy the defective vehicles to be free of safety defects in
improper gasoline containment. See Tex. Bus. & Com. Code §17.50(a)(3).
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158. Defendants represented that 2003-2009 Mercedes-Benz E-Class
vehicles contained proper and safe gasoline tanks, but they do not. See Tex. Bus.
& Com. Code §17.46(b)(5).
159. Defendants represented that 2003-2009 Mercedes-Benz E-Class
vehicles contained gasoline tanks conforming to automotive standards for safety,
which they do not. See Tex. Bus. & Com. Code §17.46(b)(7).
160. Defendants failed to disclose information concerning the defective
gasoline tanks they had knowledge of, which was intended to induce the
consumers into purchasing defective 2003-2009 Mercedes-Benz E-Class vehicles,
which the consumers would not have purchased had the defect been disclosed.
Tex. Bus. & Com. Code §17.46(b)(24).
161. Plaintiff Stone presented his vehicle and claim to an authorized
Mercedes-Benz service center on January 18, 2011, January 20, 2011, and
February 3, 2011, giving Defendants a reasonable opportunity to correct the defect.
Defendants failed to do so.
162. Plaintiff Deuel presented his vehicle and claim to an authorized
Mercedes-Benz service center on August 13, 2012, giving Defendants a reasonable
opportunity to correct the defect. Defendants failed to do so.
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163. As a direct and proximate result of Defendants’ conduct, Plaintiffs
Stone, Deuel and the members of the Texas Class are entitled to treble damages
and attorneys’ fees.
M. COUNT 7 – VIOLATION OF THE VIRGINIA CONSUMER
PROTECTION ACT (“VCPA”)
164. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
165. Plaintiff Vo and members of the Virginia Class are consumers
engaged in “consumer transactions” in purchasing or leasing a 2003-2009
Mercedes-Benz E-Class Vehicle as defined in § 59.1-198.
166. The 2003-2009 Mercedes-Benz E-Class vehicles are “goods” as
defined in § 59.1-107. Defendants are “persons” as defined in § 59.1-198.
167. Defendants are “suppliers” as defined in § 59.1-198.
168. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction involving misrepresenting
2003-2009 Mercedes-Benz E-Class vehicles as equipped with gasoline tanks that
contain the gasoline placed inside. See 59.1-200(A)(1).
169. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction involving misrepresenting
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2003-2009 Mercedes-Benz E-Class vehicles as having warranties that required
Defendants to correct defects. See 59.1-200(A)(1).
170. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction involving misrepresenting
2003-2009 Mercedes-Benz E-Class vehicles as having characteristics, uses, and
benefits that they did not have in fuel containment. See 59.1-200(A)(5).
171. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction involving misrepresenting
2003-2009 Mercedes-Benz E-Class vehicles as having characteristics, uses, and
benefits that they did not have in having warranties that required Defendants to
correct defects. See 59.1-200(A)(5).
172. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction involving misrepresenting that
2003-2009 Mercedes-Benz E-Class vehicles were of a particular standard or
quality of containing gasoline, which they were not. See 59.1-200(A)(6).
173. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction involving misrepresenting that
2003-2009 Mercedes-Benz E-Class vehicle repairs and service were performed as
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part of a recall to correct defects in the gasoline tank, which caused fuel leaks. See
59.1-200(A)(10).
174. Defendants engaged in fraudulent acts or practices committed as
suppliers in connection with a consumer transaction in manufacturing and selling
gasoline tanks as replacement parts for 2003-2009 Mercedes-Benz E-Class
vehicles which they knew to be defective. See 59.1-200(A)(14).
175. Plaintiff Vo presented his vehicle and claim to an authorized
Mercedes-Benz service center on March 14, 2011, giving Defendants a reasonable
opportunity to correct the defect. Defendants failed to do so.
N. COUNT 8 – VIOLATION OF THE FLORIDA DECEPTIVE AND
UNFAIR TRADE PRACTICES ACT (“DUTPA”)
176. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
177. Defendants can be sued under the Florida Deceptive and Unfair Trade
Practices Act (“DUTPA”), because the DUTPA allows a plaintiff to bring a cause
of action against a party who has engaged in “[u]nfair methods of competition,
unconscionable acts or practices,” and “unfair or deceptive acts or practices in the
conduct of any trade or commerce.” Fla. Stat. § 501.204(1).
178. Defendants are “motor vehicle dealers” as contemplated in Fla. Stat.
§§ 501.975(2) and 320.27.
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179. Plaintiff Mattadeen and other class members are “customers” as
contemplated by Fla. Stat. § 501.975(1).
180. Defendants have engaged in a pattern of unfair and deceptive business
practices in a regular and systematic fashion against Plaintiff Mattadeen and other
class members in that they have provided an express or implied warranty and failed
to honor such warranty as expressly prohibited under Fla. Stat. §§ 501.976 (6)-(8).
181. Defendants breached express or implied warranties with Plaintiff
Mattadeen and other class members in failing to correct a defect they had specific
notice of. Fla. Stat. §§ 672.313 and 672.607.
182. Defendants represented that the warranty confers or involves rights or
remedies, which it does not have or involve, because the defective gasoline tanks
were never corrected by Defendants to be free from defects. Fla. Stat. §§ 672.313
and 672.607.
183. Defendants failed to disclose information concerning the defective
gasoline tanks they had knowledge of, which was intended to fraudulently induce
consumers into purchasing defective 2003-2009 Mercedes-Benz E-Class vehicles,
which the consumers would not have purchased had the defect been disclosed.
184. Plaintiff Mattadeen presented his vehicle and claim to an authorized
Mercedes-Benz service center on January 18, 2011, January 20, 2011, and
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February 3, 2011, giving Defendants a reasonable opportunity to correct the defect.
Defendants failed to do so.
O. COUNT 9 – VIOLATION OF THE ILLINOIS UNIFORM
DECEPTIVE TRADE PRACTICES ACT (“UDTPA”)
185. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
186. Plaintiff Cunningham and members of the Illinois Class are individual
“persons” as defined in 815 ILCS 510/1(5).
187. Defendants are “persons” as defined in 815 ILCS 510/1(5).
188. Defendants engaged in deceptive trade practice committed in the
course of their business by misrepresenting 2003-2009 Mercedes-Benz E-Class
vehicles as having characteristics, uses, and benefits that they did not have in fuel
containment. See 815 ILCS 510/2(5).
189. Defendants engaged in deceptive trade practice committed as in the
course of their business by misrepresenting 2003-2009 Mercedes-Benz E-Class
vehicles as having characteristics, uses, and benefits that they did not have in
having warranties that required Defendants to correct defects. See 815 ILCS
510/2(5).
190. Defendants engaged in deceptive trade practice committed in the
course of their business by misrepresenting that 2003-2009 Mercedes-Benz E-
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Class vehicles were of a particular standard or quality of containing gasoline,
which they were not. See 815 ILCS 510/2(7).
191. Plaintiff Cunningham presented her vehicle and claim to an
authorized Mercedes-Benz service center on or about January 17, 2012 giving
Defendants a reasonable opportunity to correct the defect. Defendants failed to do
so.
P. COUNT 10 – VIOLATION OF THE ILLINOIS CONSUMER FRAUD
AND DECEPTIVE BUSINESS PRACTICES ACT (“CFDBPA”)
192. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
193. Plaintiff Cunningham and members of the Illinois Class are
“consumers” who purchased merchandise for use as members of their households
as defined in 815 ILCS 505/1(e).
194. Defendants are “persons” as defined in 815 ILCS 505/1(c).
195. Defendants have violated the Consumer Fraud and Deceptive
Business Practices Act in engaging in unfair deceptive acts or practices, including
but not limited to the use of deployment of any deception fraud, false pretense,
false promise, misrepresentation or the concealment, suppression or omission of
such material fact, or the use or employment of any practice described in Section 2
of the “Uniform Deceptive Trade Practices Act” in the conduct of any trade or
62
commerce declared unlawful, whether any person has in fact been misled, deceived
or damaged thereby. See 815 ILCS 505/2.
196. Defendants engaged in deceptive acts committed as in the course of
their business by misrepresenting 2003-2009 Mercedes-Benz E-Class vehicles as
having characteristics, uses, and benefits that they did not have in having
warranties that required Defendants to correct defects.
197. Defendants engaged in deceptive acts committed in the course of their
business by misrepresenting that 2003-2009 Mercedes-Benz E-Class vehicles were
of a particular standard or quality of containing gasoline, which they were not.
198. Plaintiff Cunningham presented her vehicle and claim to an authorized
Mercedes-Benz service center on January 17, 2012, giving Defendants a
reasonable opportunity to correct the defect. Defendants failed to do so.
Q. COUNT 11 – VIOLATION OF UNFAIR BUSINESS PRACTICES
UNDER CALIFORNIA BUSINESS & PROFESSIONS CODE
§ 17200, et seq.
199. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
200. At all times mentioned herein, Plaintiffs allege that Defendants knew
that the design of the fuel tank, fuel sending units, and evaporation tubes were
63
defective and posed an unreasonable safety risk to the public, due to the vehicles’
inability to contain fuel properly.
201. With full knowledge of the facts identified herein, Defendants
knowingly sold and continued to sell vehicles equipped with defective fuel tanks,
fuel sending units, and evaporation tubes to California residents, while concealing
and suppressing the nature and scope of the defects. Such concealment and
suppression was done to maximize their profits and their market share, and to
avoid a costly recall and/or the cost of replacing the fuel tank, fuel sending units,
and evaporation tubes on each of the affected vehicles.
202. The business acts and practices of Defendants are unfair, unlawful,
and deceptive within the meaning of Business & Professions Code § 17200, et
seq., in that such acts and practices are deceptive and substantially damaging to
consumers and contrary to public policy. Consumers, including Plaintiff Mediana,
who relied on the representations and warranties made, are injured when
Defendants fail to honor the warranty as prescribed herein, and due to the safety
concerns that exist in the subject vehicles.
203. Moreover, Defendants’ unlawful and unfair business practices present
a continuing and ongoing threat to the public in that Defendants will continue to
mislead and deceive the public regarding the quality and nature of the affected
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vehicles, in that Defendants will continue to fail to honor and/or refuse to honor the
terms of the express warranties provided to the consuming public.
204. Under Business and Professions Code § 17203, Plaintiff Mediana and
the California Class seek an order enjoining Defendants from engaging in the
unfair and unlawful practices and acts identified herein. Said Code section also
provides for equitable monetary relief so as to preclude the retention of all monies
improperly obtained by Defendants as a result of such practices and acts.
205. The acts and conduct alleged herein were willful, reckless, and done
with malice such that an award of exemplary damages is warranted.
R. COUNT 12 – UNJUST ENRICHMENT
206. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
207. Due to the defective condition of the gasoline tanks as complained of
herein, Plaintiffs McCabe, Vo, Deuel, Herring, Mediana, and other class members
incurred out of pocket expenses in purchasing replacement parts. Gasoline tanks,
evaporation tubes, and fuel sending units purchased as replacement parts were in a
defective condition as purchased.
65
208. Defendants received substantial profits from the sale of vehicles that
Defendants would not have received had Defendants properly disclosed the known
problem to Plaintiffs and other members of the classes.
209. Defendants received further profits from the sale of defective and/or
non-remedial replacements parts that Defendants would not have received had
Defendants replaced the defective parts with non-defective parts.
210. Defendants were conferred a benefit in payment from Plaintiffs
McCabe, Vo, Deuel, Mediana, and other members of the Georgia, Virginia, and
Texas classes for which they should equitably return or compensate Plaintiffs and
class members, i.e., Defendants were unjustly enriched by their improper conduct
and, under principles of equity, are required to compensate Plaintiffs for
Defendants’ unjust enrichment.
S. COUNT 13 – FRAUDULENT CONCEALMENT
211. Plaintiffs repeat and reallege the allegations of the preceding
paragraphs as if fully set forth herein.
212. Defendants concealed facts from all Plaintiffs and the public that
Defendants knew 2003-2009 Mercedes-Benz E-Class vehicles were manufactured
with a fuel tank defect.
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213. Defendants had a duty to disclose the facts to Plaintiffs and the public,
but failed to do so.
214. The facts that were not disclosed were and are material.
215. Defendants knew the Plaintiffs were ignorant of the facts and that
Plaintiffs did not have an equal opportunity to discover the facts.
216. By failing to disclose the facts, Defendants intended on inducing
Plaintiffs to purchase the vehicles wherein they would have to pay out-of-pocket
costs to replace defective parts.
217. Plaintiffs reasonably relied on Defendants’ nondisclosure.
218. Plaintiffs were injured as a result.
219. It was omitted to Plaintiffs and classes that 2003-2009 Mercedes-Benz
E-Class vehicles were designed and manufactured with a fuel tank defect.
Plaintiffs and classes would have never purchased their 2003-2009 Mercedes-Benz
E-Class vehicles had they known of the safety defect contained within the gasoline
tank. 2003-2009 Mercedes-Benz E-Class vehicles contain material safety defects
that Defendants knew at the time of distribution or should have known and
recklessly manufactured and distributed vehicles to consumers in the United States
without knowledge of the defect. Defendants had a duty to disclose such defects to
Plaintiffs and Class Members that the 2003-2009 Mercedes-Benz E-Class vehicles
67
would conform to safety standards as designed and manufactured, but failed to do
so. As a result of the defect, Plaintiffs and classes have suffered injury.
220. As a direct and proximate result of Defendants’ unlawful conduct,
Plaintiffs and classes have suffered or will suffer damages, which include, without
limitation, the diminution in value of Plaintiffs’ and class vehicles and
reimbursement of the costs and expenses already expended by Plaintiffs and
classes as a result of the defects in an amount to be determined at trial.
221. As a direct and proximate result of Defendants’ conduct, Plaintiff
Stone and the Texas class are entitled to treble damages and attorneys’ fees.
T. JURY DEMAND
The Plaintiffs reserve the right to amend this complaint and demands a trial
by jury for all of their claims at law.
U. DAMAGES AND PRAYER
WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of
them jointly and severally, as follows:
1. An order certifying this action as a class action, appointing Plaintiffs
as class representatives and appointing Plaintiffs’ counsel as lead Class counsel;
2. All compensatory damages on all applicable claims in an amount to
be proven at trial, and, as allowed by law, for such damages to be trebled or
68
multiplied upon proof of claims under laws allowing for trebling or multiplying of
compensatory damages based upon Defendants’ violations of law;
3. An order directing disgorgement and restitution of all improperly
retained monies by Defendants;
4. An order permanently enjoining Defendants from engaging in the
unlawful practices, as alleged herein;
5. For an injunction to prohibit Defendants from engaging in the
unconscionable commercial practices complained of herein, and for an injunction
requiring to give notice to persons to whom restitution is owing of the means by
which to file for restitution;
6. For punitive damages against Mercedes-Benz USA in an amount to be
determined at trial;
7. An award of attorneys’ fees, costs, and expenses;
8. There are no claims from a split-recovery statute being made against
Daimler AG; and,
9. All other and further relief, including equitable and injunctive relief,
that the Court deems appropriate and just under the circumstances.
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This 28th
day of August, 2012.
Respectfully submitted,
CONLEY GRIGGS PARTIN LLP
/s/ Cale Conley
Cale Conley
Georgia Bar No. 181080
Ranse M. Partin
Georgia Bar No. 556260
Matthew Q. Wetherington
Georgia Bar No. 339639
The Hardin Building
1380 West Paces Ferry Road
Suite 2100
Atlanta, Georgia 30327
Telephone: 404-467-1155
Facsimile: 404-467-1166
70
WIGINGTON RUMLEY DUNN &
RITCH, L.L.P.
Neil A. Goro
Texas Bar No. 24062751
Joseph M. Dunn
Texas Bar No. 06245650
601 Howard Street
San Antonio, Texas 78212
Telephone: (210) 487-7500
Telecopier: (210) 487-7501
COUNSEL FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
I hereby certify that I have filed the foregoing First Amended Class Action
Complaint, by electronically filing said pleading with the Clerk of the Court,
using the CM/ECF electronic filing system, which will automatically send notice
of said filing via electronic mail to the following attorneys of record:
Stephen B. Devereaux, Esq.
King & Spalding, LLP
1180 Peachtree Street, N.E.
Suite 1700
Atlanta, Georgia 30309-3521
Counsel for Defendants
This 28th
day of August, 2012.
CONLEY GRIGGS PARTIN LLP
/s/ Cale Conley
Cale Conley
Georgia Bar No. 181080
The Hardin Building
1380 West Paces Ferry Road
Suite 2100
Atlanta, Georgia 30327
Telephone: 404-467-1155
Facsimile: 404-467-1166